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COMMONWEALTH PENNSYLVANIA v. FRANK FLOYD (10/27/78)

decided: October 27, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK FLOYD, APPELLANT



No. 11, October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Informations Nos. 1833-38, January Session, 1977.

COUNSEL

Edwin P. Smith, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney and Edward G. Rendell, District Attorney, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Hester

[ 259 Pa. Super. Page 554]

Appellant Frank Floyd was convicted in a non-jury trial of charges of robbery, burglary, simple assault, conspiracy, and possession of instruments of crime. Following the denial

[ 259 Pa. Super. Page 555]

    of post trial motions, sentence was imposed. On this direct appeal, two issues are raised for our determination:

1) whether certain Commonwealth witnesses should have been permitted to testify after a violation of a sequestration order;

2) whether the Commonwealth knowingly presented a witness who perjured himself.

We find no error and will therefore affirm.

Viewing the testimony in the light most favorable to the verdict winner, the following facts were established. On January 14, 1977 at approximately 7:30 P. M. the victim Clyde Sims was shovelling snow outside his home on East Phillellana Ave. in Philadelphia. He was accosted near his front door by appellant, who made inquiries about buying marijuana. When Sims replied he knew nothing about any marijuana, appellant's co-defendant Fenning suddenly appeared and placed the barrel of a gun against Sims' neck. Sims was forced into his home and the threesome were quickly followed by the other co-defendant, Gibson, and a fourth man, never subsequently identified. The victim's wife and children were also in the house and were ordered to sit down. Sims was led into his bedroom by appellant and Fenning where his hands were bound and his head was gashed from a blow with the butt of a gun. When pressed as to the location of money and jewelry, Sims replied he had money in his coat pocket in the basement.

While the robbery was in progress, Officers Christensen, Bucci, Addlesburger, and Rutter of the Philadelphia Police Dept., were summoned to the scene.*fn1 As he entered the bedroom, Officer Christensen saw Sims kneeling on the floor, hands tied, head bleeding. Standing nearby were appellant and Fenning, both holding guns. ...


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